Concept of Hiba

People belonging to the Islamic religion practised the performance of gifts in the name of Hiba. Hiba is a transfer of property made immediately from one person called as a donor to another person called as donee followed by the delivery of possession. Hiba can be done through two ways namely, inter vivos and testamentary will. For a valid Hiba, there should be a donor who makes the gifts and done who accepts the made gift followed by delivery of possession; the person must have attained the age of 21 years and should be sound mind; there must be the subject-matter of Hiba. The made Hiba (gift) can also be revoked by the donor.

Introduction

Generally, a gift is an object given voluntarily to any person as a present without any remittance. It is also considered as cultural practice in many countries following different cultures. A gift in a broader sense is the conveyance of estate whether movable or immovable from one person to another. Peoples belong to the Islamic religion practiced the performance of gifts in the name of Hiba. The tradition of performance of gifts between Muslims has been evolved much during the tenure from 610 to 650 AD.

Meaning & Brief Explanation

Meaning

The practices of gifts in India are regulated by the Transfer of Property Act, 1872. But the written statutory law maintained under the Transfer of Property Act does not bind or apply on the Muslims. Hiba is a transfer of property made immediately from one person called a donor to another person called as donee followed by the delivery of possession [1]. So, gifts in Muslim law are called a Hiba.

Explanation

As per English laws, a person can enjoy title on the temporary property but in Muslim law, it varies. The person is entitled to title only when he/she has complete ownership of that property and not on a temporary property for a short time. The word Hiba has a definite explanation under Muslim law:

Hanafi lawyers defined Hiba as an “act of bounty by which a right of property is conferred in something specific without an exchange” [2].

Durr-ul-Muhtar clarifies Hiba is a “transfer of the right of property in substance by one person to another without return.” [3].

The Shias stated that Hiba is an “obligation by which property in a specific object is transferred immediately and unconditionally without any exchange and free from any pious or religious purpose on the part of the donor” [4].

Modes of the Hiba

Hiba (gift) is the conveyance of the property whether movable or immovable from one to another. Thus, such a gift can be transferred in two ways:

  1. Inter vivosOne person can legally give away his whole estate as a gift to another during his lifetime.
  2. Testamentary Will – Under a testamentary will in Muslim law, a person can give away only one of the three parts of the whole estate (one-third) as a gift. Such a gift is entitled to the specified person only after the death of the will-maker (testator).

Requisites for Valid Hiba

For a valid Hiba (gift) the following essentials must be satisfied:

  • Parties to the hiba,
  • Delivery of possession,
  • Capacity to make hiba,
  • Subject-matter of hiba,

Parties to the Hiba

Gift (hiba) is also considered as a part of contract law. Thus, offer and acceptance concept is applied in hiba (gift) also. There must be a minimum of two members for making Hiba. Proclamation of the statement of making gifts should be done by the donor. The nature of statement may be express or implied. Such an announcement of a statement must have the intention to transfer ownership of that possession. Muslim law does not state that the transfer of title of gift should be registered or written mere oral renouncement is enough. The gift must be made by the donor so that the gift is sent to the donee. The acceptance of that gift should be made only by the donee. So, there must be two parties i.e. donor and donee to make a valid Hiba. And they both only have the right to challenge before the court of law on claims if any disputes arise among the gift-deed.

Delivery of Possession

Delivery is the conveyance of a property from one person to another. Possession refers to the gift to be delivered. Delivery of possession is one of the most essentials. Without delivery of possession, the gift becomes incomplete i.e. the donee cannot make acceptance since it is not transferred to him. The delivery of a gift can be made only by the donor. It can be actual or constructive.

Capacity to Make Hiba

  • Any individual belongs to the Islamic religion whether male or female, considered as a major who completed the age of 21 years. And people under 18 years can make a gift with the help of the next friend who has completed the age of 21 years.
  • A person of sound mind can make gifts. An unsound individual shall make a gift during the time of lucidity when he gets temporary improvement to normal conditions.
  • Any person with absolute ownership without financial incapacity can make a declaration of gift with the intent of transfer of possession.

Subject-Matter of Hiba

Every mode of an estate (mal) where one has absolute control over it and that can be utilized are considered as the subject-matter of the hiba. Such estate/property comprises of all movable and immovable, corporeal, and incorporeal, tangible, and intangible, personal, and real with right of enforceable. The gifts become blindly invalid when the subject-matter of the gift is not vested with an enforceable right.

Some of the validity of the subject-matter of property is as follows:

Gift of Actionable Claims or Incorporeal Property

Before days there was a dispute on suggestions among Muslim powers. As a result, it put forwarded that conveyance of actual (physical) possession is compulsory in all subject-matters for a valid hiba. For properties where one cannot deliver the physical possession, such property does not refer to the subject-matter of a valid gift. In a clear sense, the incorporeal property is not considered as a valid subject-matter of hiba only with corporeal property hiba can be made.

But this method was not practiced now in modern India, so incorporeal property is also regarded as a valid subject-matter of hiba equal to the corporeal property. Such that leased properties, governmental promissory notes, zamindari rights are also the valid subject-matter of hiba. Therefore, all actionable claims or all incorporeal properties are said to be the subject-matter of Hiba [5].

Gift of Equity of Redemption

In a mortgaged property when the donee is not in possession, the mortgagor has the power to put the mortgagee (donee) in possession. Since the gift of equity of redemption is valid. In certain cases, the High Court of Allahabad, Calcutta, Patna the gift of equity of redemption is valid even the donee is in the possession of the mortgaged property. But it also declared by the Bombay High Court as invalid [6].

Gift of Property Held Adversely to the Donor

The subject-matter of the gift becomes invalid for the properties obtained by illegal means i.e. usurper. The donor has no power to put the donee into possession of such properties [7].

Gift of a Non-Existent Object

When the properties that can be combined which changes continuously in their nature are regarded as invalid. And such properties are said to be valid only it can be separated to make donee in possession. The Fatwai Alamgiri says that “a gift of something which is not n existence at the time of conduct will not be valid” [8].

Gift of Life Interest

In India, Muslim law recognizes to classify the ayn (corpus) of property and manafi (usufruct) property. Corpus means absolute and complete title on the property and the rights are unrestricted. In the usufruct sense right of complete ownership of property is limited. So, gift of corpus property is known as hiba, and usufruct property is known as ariya [9].

Gift of Musha

To clear the uncertainty of which part should be given to the donee as a gift of joint property obtained by more owners the doctrine of musha is used. Musha means joint part or share denotes one’s property. It is classified into two types as divisible and indivisible. The partition is not allowed in musha indivisible. So, it does not apply where the subject-matter of gift is indivisible. The gift of indivisible musha is valid in physical transfer of possession without partition. In the divisible musha partition is possible without changing its original position. It should be a separate and specific gift allotted to the donee by the donor [10].

Void Gifts

The gifts made under the following grounds are said to be void gifts.

  • In the doctrine of ikrah, gifts given under the circumstances of compulsion or force is said to be void.
  • A gift made with intent to cheat the creditors is void.
  • A gift to an unborn child not made prior to 6 months of birth shall be void.
  • The contingent gifts which are depends on the occurrence is void.
  • Gifts made with complete conditions are void but in Shia law gift accompanied by only a subsidiary condition is valid.
  • The performance of gifts in future is void. The given gift should be existed at that time.

Categories of Gifts under Muslim Law

 In some circles under Muslim law, there are five practices which likely denote the Hiba, but they are clearly indifferent form hiba. They are as follows: –

  1. Aariat – This gift confers the license to enjoy usufruct specific property for a specific time without consideration and revocable at the wish of the donor.
  2. Sadaqah – The practice of this gift is associated with the transfer of property to attain a religious benefit. It is irrevocable and made by more than two people if they are poor with the incidence of joint propensity.
  3. Hiba-bil-iwaz – When an individual i.e. donor makes a gift to another the gift made is accepted and returned with some consideration by the donee to the donor is called as Hiba-bil-iwaz.
  4. Hiba-ba-sharat-ul-iwaz – Where a gift is made with a minimum condition or stipulation for a return this method is known as Hiba-ba-sharat-ul-iwaz.
  5. Marzul-maut – It is subjected to all conditions under inter vivos for other persons and testamentary will for the heirs. Here gift of certain property not more than one-third is given in the form of will while living of the donor. This form of gift is valid and made only when the donor is suffering from any illness (marz) and it is believed that there is a reasonable apprehension of death (maut) of such illness. After recovery of the donor that gift becomes normal and testamentary procedures will not be applied.

 

Revocation

Under Muslim law, all settlements made deliberately are revocable. Thus, transactions made by gifts also revocable. The revocation can be in two ways, namely revocation of gifts:

  • Before the delivery of possession.
  • After delivery of possession.

Before delivery of possession

The gift is not said to be a gift since transaction is not completed. So, such gifts can be revoked by the donor at any time before the delivery of possession.

After delivery of possession

In the case of after the delivery of gifts it is possible to revoke only on the consent of donee or mediation by the Court of law. However, some gifts made cannot be revocable even with the consent of the donee. Such as gift made by the wife to husband or inverse are irrevocable; when either party to the gifts i.e. donor or donee died the gifts becomes irrevocable; gifts made with the intention of Sadaqah are irrevocable; made gifts becomes irrevocable when it gets demolished; the gifts with consideration becomes irrevocable [11].

Case Studies

In Hussaina Bai v. Zohara Bai [1960 MP 60], the court held that the gift-deed made was void since that Muslim woman was made to sign a gift-deed by use of force or compulsion and not done independently by her own [12].

Maimuna Bibi v. Rasool Mian [AIR 1991 Pat 203], it was stated that gift declared orally is accepted as a gift under Muslim law no written registrations are required. And for such an orally declared gift the donor should have full right of title on the gift [13].

Md. Hesabuddin v Md. Hesaruddin [AIR (1984) Pat, 203], it was challenged before the court that gift made by a Muslim Woman was not registered on a stamp paper. For that, the Court stated that the made gift was valid since Muslim law does not recognize gifts must be a written & registered one [14].

In Abdul v. Mir Md. [(1886) 11 IA 10], the court held that gift made was invalid on the grounds of such a gift is made with intent to defraud the creditor [15].

Ismail v. Ramji, [(1889) 23 Bom 682], the Bombay High Court declared that the mortgagor could not put donee into the possession thus the gift of equity of redemption becomes invalid [16].

In Ahmia v. Khatija, [(1864) 1 Bom HCR 157], the court stated that gift as keys of the house made by the husband during his lifetime to his wife is declared to be a valid one on the inter vivos rule [17].

In the case of Mahboob v. Abdul, [AIR 1957 Mad 588], it was held that the donee has right to exercise the gifted property by donor after the delivery of possession. Therefore, donee can also have the right to alienate gifted property until the order of the court is passed to revoke that gift by the donor [18].

 

Conclusion

All the religions in India accept the common definition of the gift mentioned in the Transfer of Property Act, 1872. Thus, gifts made by the Indian Islamic people under the Muslim law are called Hiba.

FAQs

Q.1. What is Hiba?

Hiba is a transfer of property made immediately from one person called as a donor to another person called as donee followed by the delivery of possession.

Q.2. How Does the Revocation of Hiba Can Be Done After the Delivery of Possession?

After the delivery of gift, it is possible to revoke only on the consent of donee or mediation by the Court of law.

Q.3. When Hiba Does Become Void?

The hiba made under following grounds is said to be void.

  • In the doctrine of ikrah, gifts given under the circumstances of compulsion or force is said to be void.
  • A gift made with the intent to cheat the creditors is void.
  • A gift to unborn child not made prior to 6 months of birth shall be void.
  • The contingent gifts which are depends on the occurrence is void.
  • Gifts made with complete conditions are void but in Shia law gift accompanied by only a subsidiary condition is valid.
  • The performance of gifts in future is void. The given gift should be existed at that time.

Q.4. What Are the Essentials of Valid Hiba?

 For a valid hiba (gift) it is necessary that the following essentials should be satisfied:

  • Parties to the hiba,
  • Delivery of possession,
  • Capacity to make hiba,
  • Subject-matter of Hiba.

Q.5. Who Can Challenge Hiba Before the Court of Law?

Only persons subjected to the hiba (gift) i.e. the donor and donee can challenge their claims before the court of law.

Reference

[1] Dr. Paras Diwan’s, FAMILY LAW, pg: 543, 11th edition [reprint: 2019], Allahabad Law Agency

[2] Dr. Paras Diwan’s, FAMILY LAW, pg: 543, 11th edition [reprint: 2019], Allahabad Law Agency

[3] Dr. Paras Diwan’s, FAMILY LAW, pg: 543, 11th edition [reprint: 2019], Allahabad Law Agency

[4] Dr. Paras Diwan’s, FAMILY LAW, pg: 543, 11th edition [reprint: 2019], Allahabad Law Agency

[5] Dr. Paras Diwan’s, FAMILY LAW, pg: 544, 11th edition [reprint: 2019], Allahabad Law Agency

[6] Dr. Paras Diwan’s, FAMILY LAW, pg: 545, 11th edition [reprint: 2019], Allahabad Law Agency

[7] Dr. Paras Diwan’s, FAMILY LAW, pg: 545, 11th edition [reprint: 2019], Allahabad Law Agency

[8] Dr. Paras Diwan’s, FAMILY LAW, pg: 545, 11th edition [reprint: 2019], Allahabad Law Agency

[9] https://www.ourlegalworld.com/concept-of-gift-or-hiba-under-muslim-law-our-legal-world/

[10] https://blog.ipleaders.in/concept-of-gift-under-islamic-law/

[11] https://www.slideshare.net/shivi2022/concept-of-hiba, slide-17.

[12] Dr. Paras Diwan’s, FAMILY LAW, pg: 544, 11th edition [reprint: 2019], Allahabad Law Agency

[13] https://www.lawctopus.com/academike/concept-of-gift-under-muslim-law/

[14] https://www.lawctopus.com/academike/concept-of-gift-under-muslim-law/

[15] Dr. Paras Diwan’s, FAMILY LAW, pg: 544, 11th edition [reprint: 2019], Allahabad Law Agency

[16] Dr. Paras Diwan’s, FAMILY LAW, pg: 545, 11th edition [reprint: 2019], Allahabad Law Agency

[17] Dr. Paras Diwan’s, FAMILY LAW, pg: 550, 11th edition [reprint: 2019], Allahabad Law Agency

[18] Dr. Paras Diwan’s, FAMILY LAW, pg: 554, 11th edition [reprint: 2019], Allahabad Law Agency

 

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